Frequently Asked Questions

The Law

How does the law apply to victims of sexual assault who are children, adolescents or others who are unable to consent for themselves?

Criminal Procedure Law § 210.16(5) states: "The application for an order to compel a defendant to undergo an HIV related test may be made by the victim but, if the victim is an infant or incompetent person, the application may also be made by a representative as defined in section twelve hundred one of the civil practice law and rules."

Who can receive the result of the defendant's test?

Criminal Procedure Law § 210.16(7) states "Test results shall be disclosed subject to the following limitations . . . disclosure of confidential HIV related information shall be made to the defendant upon his or her request, and disclosure to a person other than the defendant shall be limited to the person making the application."

When can an application for defendant testing be filed?

Criminal Procedure Law § 210.16(2) states: "The request must be filed with the court prior to or within forty-eight hours after the indictment or superior court information has been filed with the superior court". A superior court information has the same force and effect as an indictment.

How long will it take for a response from the courts after a victim applies for defendant testing?

The law does not address the time frame in which the court must respond. The purpose of the law is to provide medical or psychological benefit for the survivor, which implies a timely response.

How long does it take from the time the person is charged with the assault to be indicted for the assault?

The amount of time between when someone is charged with assault and the time they are indicted varies. If the prosecutor decides there is sufficient evidence that a suspect has committed an offense, the prosecutor will prepare charges formally accusing the defendant with committing a felony offense and will formally notify the defendant of those charges at an arraignment. After the arraignment, there may be a preliminary hearing or the case may go directly to a grand jury. If the defendant gives up the right to have the case presented to a grand jury, the prosecutor will file a superior court information. Depending upon how the district attorney decides to prosecute the case and whether the defendant exercises or waives the right to a speedy trial, the amount of time it would take for a grand jury to hear the evidence and return an indictment would vary by case. If the grand jury indicts the defendant, the prosecutor will file the indictment.

Does the law apply to ongoing sexual abuse?

The law applies to a defendant who is being prosecuted for one or more specific felony sexual offenses.

Does the law allow for the testing of the defendant's blood for hepatitis B and hepatitis C?

The law does not address hepatitis B and hepatitis C.

Does this law apply to juveniles charged as a juvenile delinquent in family court for sexual offenses or only if they are charged in adult criminal court?

CPL 210.16 does not apply to a juvenile delinquent. It would apply to a juvenile offender who is prosecuted in the same manner as an adult. A juvenile offender 14 or 15 years of age may be prosecuted as an adult for serious and violent crimes, of which two - rape in the first degree and criminal sexual assault in the first degree - appear to have the requisite element of sexual intercourse or oral sexual contact or anal sexual contact to trigger the HIV testing requirement. Until October 1, 2018 any person who has attained the age of 16 is an adult for purposes of criminal responsibility. Legislation passed in 2017 will raise the age of juvenile delinquency from 16- to 17-years old beginning October 1, 2018, and subsequently raise the age of criminal responsibility to 18-years-old on October 1, 2019.

The Defendant

Does the defendant's specimen need to be collected in a "chain of custody" procedure?

This is not evidence, therefore, there is no chain of custody.

Can the defendant be tested once arrested or not until an indictment is made?

The Court can only order a defendant to be tested once they are indicted.

Considering the restrictions the law places on sharing the defendant's test result, does a defendant's positive test get reported on a Provider Report Form?

All HIV positive tests in NYS are reported to the NYSDOH by the lab and by the provider.

Notification can be made to the victim's contacts. What about the defendant's contacts?

Partner notification will be offered to the defendant at the post-test HIV-positive counseling session.

Who is responsible for testing if the defendant is in another jurisdiction when the court orders defendant testing or when the test results are received, especially if the testing was requested several months after the assault?

There may be times when the defendant and survivor will be in different counties. The involved counties will need to communicate and develop a plan for testing and providing post test results to both the defendant and the survivor.

If the defendant is incarcerated, are there any obligations for jail staff or jail medical staff?

The county and jail should work together to develop a plan for implementing defendant testing. Jail staff may provide pre-test information, obtain specimens, and provide test results and counsel the defendant regarding the results.

The Survivor

How is the survivor informed that defendant testing is available?

Rape evidence kits used when performing a forensic exam include a brochure that informs the survivor about defendant testing. In addition, other points of contact such as rape victim advocates, police departments or district attorney survivor services should inform the survivor about the process for having the defendant tested for HIV.

If the defendant tests negative but the survivor tests positive, will the defendant be offered PEP?

Emergency Departments

What education do ED staff receive regarding Defendant Testing?

All EDs should have protocols for treatment of survivors of sexual assault. Materials and guidance for defendant testing may be found at HIV Clinical Guidelines. The AIDS Institute’s Clinical Education Initiative contact information is located at the end of this document.

If the court orders testing during the evening or on a weekend, do the local EDs have responsibilities for testing defendants?

Emergency Departments do not test defendants . The law states this is the responsibility of the state and local public health officer.

As a SANE nurse, what is my obligation/responsibility to inform the survivor of defendant testing?

Provide the survivor brochure which includes information about defendant testing and answer any questions as needed.

Medical Guidance

Why isn't rapid HIV test recommended when less than 42 days have elapsed since the assault?

According to the manufacturer package inserts, the window period for some rapid tests is up to 42 days; therefore, a laboratory-based HIV antigen/antibody test should be used for defendant testing between 30 and 42 days from the time of the assault.

What is the clinical guidance for defendant testing if the court orders testing less than 7 days following the alleged assault?

If the defendant is tested less than 7 days from the time of assault, a viral load and a standard HIV antigen/antibody test would be ordered. A positive test would be accurate; a negative test could be incorrect (false negative) and should not be used to decide to discontinue PEP. Another court order would need to be requested for follow-up testing after 7 days to make that decision.

Defendant Specimen Handling

Where can I find a list of county health departments to identify the public health officer for each county?

Are drug resistance patterns run on positive specimens?

No resistance testing is done on defendant HIV tests.

Disclosure

Re-disclosure by the survivor of the defendant's test result is limited to the survivor's immediate family, guardian, physicians, attorneys, medical or mental health providers and to his or her past and future contacts to whom there was or is a reasonable risk of HIV transmission. Disclosure is not permitted to any other person or the court. What is meant by past contacts? Would this be limited to contacts after the alleged assault?

This refers to contacts that the survivor may have exposed since the assault. These contacts would be told they may have been exposed to HIV and encouraged to be tested for HIV. No names would be used.

What repercussions are there, if any, for the victim that re-discloses the perpetrator's HIV status indiscriminately to people that aren't authorized to receive that information?

The survivor would be in violation of the law.

If the patient speaks to the media (even if the results can't be given to the court) could it be difficult to find unbiased jurors?

Speaking to the media would be a violation of the law.

If the survivor wishes, is he/she then allowed to let the court know that he/she has been exposed - in essence, telling the court that the defendant is positive?

No.

Other

What education is provided to correctional facilities and what is their role?

After indictment, defendants may be on bail or in jail. The county public health officer should be in communication with the jail regarding the court ordered defendant testing. The county and jail can work together to set up a process for defendants that are in the custody of the jail.

For Further Information:

For more information: NYSDOH website on Court-Ordered HIV Testing of Defendants:

CEI [Clinical Education Initiative] provides a toll-free number for clinicians in New York State to discuss PEP, PrEP, HIV, HCV and STD management with a specialist. This line supports inquiries from clinicians only in the following disciplines: MD, NP, CNM PA, RN, PharmD or DDS and is not intended for patient or consumer inquiry.
866-637-2342